Citation Nr: 1541445
Decision Date: 09/25/15 Archive Date: 10/02/15
DOCKET NO. 13-23 893 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUE
Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicides.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Mary E. Rude, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1964 to September 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The appeal was certified to the Board by the RO in Seattle, Washington.
In September 2014, the Veteran testified at a Board video conference hearing before the undersigned. The Board Hearing transcript (Tr.) has been associated with the record.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran contends that he has Parkinson's disease which was caused by exposure to herbicides, including Agent Orange, in service. The Veteran testified at a Board hearing in September 2014 that his duties in service including guarding missile sites and delivering herbicides up to the flight deck of the U.S.S. Kitty Hawk. Board Hearing Tr. 3. He described the canisters he worked with and stated that he had been informed, at the time, that they contained herbicides, and that on one occasion one canister was leaking and caused him to cough. Id. at 4, 6. He stated that during service, he read on the left side of one canister the written word "defoliant," and further down, the word "dioxin," and that the canisters had orange stripes, which he only later learned indicated the presence of Agent Orange. Id. at 10-12.
Although the Veteran did not have any service in the Republic of Vietnam, and thus does not qualify for a presumption of exposure to herbicides, he may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). He has submitted evidence in the form of photographs that he claims provides proof that he was in contact with herbicides during his service. These photographs show the Veteran, in service, standing behind a long white canister with a yellow-colored band near one end. As it is unclear from the photographs whether the canisters do, in fact, contain herbicides, an attempt must be made to determine what these canisters are and if they could indicate the presence of herbicides on the Veteran's ship.
The Board notes that the undersigned has contacted the Joint Services Records Research Center (JSRRC), and they have indicated that they would not be able to identify the canisters in question based on the submission of a photograph. It was recommended that these photographs be sent to the Naval History and Heritage Command.
If the presence of herbicides on board the Veteran's ship can be verified, the AOJ should proceed with all appropriate further development.
The record also indicates that the Veteran receives medical treatment at the Mount Vernon Community Based Outpatient Clinic, part of the VA Puget Sound Health Care System. All outstanding, relevant VA treatment records since March 2013 must be acquired and associated with the claims file.
Accordingly, the case is REMANDED for the following action:
1. Obtain all outstanding, pertinent records of treatment of the Veteran from the Mount Vernon Community Based Outpatient Clinic and the VA Puget Sound Health Care System since March 2013.
2. Attempt to independently verify the presence of herbicides on board the U.S.S. Kitty Hawk between 1965 and 1967. This should include contacting the Naval History and Heritage Command, and any other agency deemed appropriate, to request that an appropriate expert identify the white canisters in the photograph submitted by the Veteran. The request should note that the Veteran testified that he read on the side of the canisters the words "dioxin" and "defoliant." Board Hearing Tr. 12.
If the Naval History and Heritage Command, or any other agency contacted, is unable to identify the canisters, a negative response must be provided.
Any additional action necessary for independent verification of the presence of herbicides on the U.S.S. Kitty Hawk or the identity of the canisters in the photographs should be taken as deemed necessary. If the search for corroborating evidence and identification leads to negative results, the AOJ should notify the Veteran of this fact, explain the efforts taken, and describe further action (if any) to be taken. If it is determined that there is no further reasonable action that can be taken, that too should be set forth in a Formal Finding and the appellant informed.
3. If the presence of herbicides on board the U.S.S. Kitty Hawk can be verified, the AOJ should proceed with any appropriate further development.
4. Then, readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Then, the case should be returned to the Board, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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DAVID S. AMES
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).